California’s Ninth Circuit Comes Out with Guns Blazing
California gun owners celebrate a key court decision that embraces the Second Amendment on a state level.
You won’t find me saying nice things about the Ninth Circuit Court of Appeals very often, so savor the moment.
On April 20, Alameda County, California, “won” a gun control case that has many gun owners dancing in the aisles.
King Pyrrhus of Epirus in 280 BC and 279 BC won such costly victories over the Romans. He remarked, “One more such victory and I am lost.” And the gun control movement just had such a Pyrrhic victory in Nordyke v. King.
Alameda County, like other California counties, tried to prohibit gun shows at the county fairgrounds. The Ninth Circuit struck down a previous effort by Santa Clara County on First Amendment grounds, because it restricted lawful, commercial speech (the offering of guns for sales), and there was no compelling governmental interest advanced by it.
The first time that the current lawsuit reached the Ninth Circuit, the judges were sympathetic to Nordyke’s claim that Alameda County was violating the Second Amendment, but the U.S. Supreme Court had not yet issued a clear ruling about whether the Second Amendment protected an individual right or a collective right.
Last year, the U.S. Supreme Court ruled in D.C. v. Heller (citing some of my work) that the Second Amendment protected an individual right to possess handguns in one’s home for self-defense. Because Heller involved federal jurisdiction — not a state law — it left open the question of whether the Second Amendment applied to the states or not. The Bill of Rights, until the Fourteenth Amendment, limited only the federal government. States were free to give preference to particular churches, limit freedom of speech, and perform warrantless searches — and many did. Over the course of the 20th century, the Supreme Court “incorporated” various provisions of the Bill of Rights against the states, piece by piece. This process is known as “selective incorporation”: certain rights are incorporated through the due process clause of the Fourteenth Amendment.
There’s no persuasive theory behind this. The Court has sometimes talked about how certain rights are “fundamental to ordered liberty,” but it hasn’t ever explained this with anything deeper than arm waving. Even academics who like the result recognize that it is nonsense: the Court was cherry-picking the rights it liked and ignoring those (like the Second Amendment) that it didn’t like.
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Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is www.claytoncramer.com.
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15 Comments
1. BPT (Australia):If liberals think that gun-controls work, then feel free to visit Australia. Our laws are a joke, and even one major airport found out the hard way.
May 2, 2009 - 2:37 am 2. Mike2:What’s even more amazing is the wording in the decision that an armed citizenry might be necessary to defend against tyrannical government here at home! How timely is that?
May 2, 2009 - 5:15 am 3. seven:The leftists extremeists got shot down. Now the liberals can go ban spoons in the battle of obesity.
May 2, 2009 - 6:23 am 4. FREE:“What’s even more amazing is the wording in the decision that an armed citizenry might be necessary to defend against tyrannical government here at home!”
I wonder if the court was worrying about the big “0″
May 2, 2009 - 6:46 am 5. logdon:After a crazy paedophile killed a large number of children in a school in Dunblane, Scotland, hanguns were totally banned. Since then gun crime has rocketed especially amongst urban blacks whipped up by rap, crack and a victim culture mentality. Areas of London and Manchester with pockets of high immigrant density are particularly affected. So, you can take the guns away yet the gun mentality escalates. And escalates thus proving that it’s not the guns but the mindset of ones who use them. And also banning them doesn’t mean that they are unobtainable. If say handguns were banned in the US what happens to the millions in circulation? Amnesty and handing in? Doesn’t work. We’re reaching the end of a socialist nightmare. Obama resembles Blair so much with his slick tongue and faux cool persona. You’re stuck with him for four years. Thankfully our Blair replacement will be gone next year. It won’t kill you but it will certainly change America for the worse. And you’ll be a lot poorer as millions pour down experimantal swamps never to be seen again. Batten down. Hold resolve and it’ll soon pass.
May 2, 2009 - 8:06 am 6. Benson:Maybe this will be Obama’s response to the fact that disarming the public is becoming harder and harder to do as the courts catch up to the obvious meaning of the constitution…. It seems he has already planned on having to defend the government from the electorate.
May 2, 2009 - 9:04 am 7. DaveinPhoenix:The 9th Circuit ? Are you sure ? This can’t be. You’re sh**ing me right ? Ahhhh…I know, this is one of those jokes going around the internet, right ?
After following the 9th Circuit for years, I’m now convinced that pigs really do fly.
May 2, 2009 - 9:33 am 8. RKV:I would feel better about this development if the 9th wasn’t the most overturned circuit in the courts. Further, it is my sincere hope that other litigants are coming forward after this ruling. Here in the PRK we far too many unconstitutional enactments (they aren’t laws) which need stricken down. E.g. it would appear to me, and IANAL, that Murdock v. Pennsylvania (319 U.S. 105) would appear that the “assault weapon” registration should found unconstitutional, as a license fee imposed to enjoy a right – “A state may not impose a charge for the enjoyment of a right granted by the federal constitution.” And let’s not get caught up in the “granted” vs. pre-existing discussion, please.
May 2, 2009 - 9:56 am 9. steveg:#1 BPT..I have always wanted to take a trip to Australia and New Zealand. I am curious if Australia suffers the same left-wing dogma as America? Are the schools in Australia indoctrination centers? Is the media extremely biased? Just Curious?
May 2, 2009 - 10:09 am 10. OLDPUPPYMAX:The second amendment was made part of the Constitution in order that the people might protect their liberties from and eventually overthrow a tyrannical government. Evidently the 9th circus has just learned this.
May 2, 2009 - 1:09 pm 11. PatriotUSA:What’s even more amazing is the wording in the decision that an armed citizenry might be necessary to defend against tyrannical government here at home! How timely is that?
Very timely since gun owners, those who lean to the right politically have been branded and dangerous right wing extremists. As this came out of the 9th circus court of appeals I will need to wait a bit longer before I celebrate like I really want to. An excellent outcome for sure. A hand gun ban in the USA?? I suppoose that is possible but they would never find mine and the market would go underground for sure
and not many would be willing to turn their weapons in. The way this administration is caving in to our enemies, who knows what is going happen. I will protect my family, and to the death if need be.
Liberalism=tyranny!
May 3, 2009 - 1:12 am 12. nilk:steveg, in case BPT doesn’t get back to you, the answer is yes. The schools are lefty indoctrination centres.
If any aussie readers want to disagree with me, then I can point out one child who came home telling me that Japanese people are evil for killing and eating whales (mine), and white people are mean to aboriginal people (also mine).
My child is nearly 7, so it’s not looking good for her.
At least she thinks our PM Kevin Rudd (a lefty suspected to be in the pocket of China) is an idiot and likes John Howard.
Another child brought home an art project last year which consisted of making a model of a toll road and then explaining why it was a good thing. Here in Melbournistan we have a rather socialist government who were voted in in part on the promise of finally building a freeway and not tolling it. They lied. It’s a great road, but it’s not free.
That child also had a homework assignment on recycling – she had to give a talk on recycling with a list of words that had to be included. That was at grade one, which is 7/8 years old.
So that’s two for two.
May 3, 2009 - 2:38 am 13. ross:Will obama take over the ammo industry?
May 3, 2009 - 2:56 am 14. Eowyn:To steveg re: Socialistic Oz — yes to each issue you ponder.
For excellent insight into Australia today (and, indeed, the U.S. and world affairs), visit Andrew Bolt’s blog (http://tinyurl.com/2klgya) and Tim Blair’s blog (http://tinyurl.com/5n3nee).
May 3, 2009 - 9:47 am 15. Will:Without the second amendment all the others mean nothing. Most people don’t realize that fact.
May 4, 2009 - 3:51 pm